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2003 DIGILAW 1195 (MP)

YASHODA DEVI w/o RAMSINGH RAJPUT v. SUMAN wd/o LATE SHARADRAO AKOLKAR

2003-10-31

P.C.AGRAWAL

body2003
JUDGMENT : This is a Civil Revision under section 23-E of the Madhya Pradesh Accommodation Control Act, 1961 (Act for short). Rent Controlling Authority (R. C. A. for short) has allowed the application of respondent under section 23-A of the Act on the ground of bona fide requirement for non-residential purpose of opening a shop for his son Vinay Akolkar (AW-2). 2. Respondent is a Hindu widow. She claimed to have acquired the disputed shop in oral partition of the family property in the year 1981. A memorandum of such partition was reduced into writing on 28-1-1995. She bona fide required the disputed shop for starting a new business of her major son Vinay Akolkar (AW-2) for which purpose she has no other reasonably suitable shop in the town. Quit notice dated 31-3-1997 demanding vacant possession since 30-6-1997 was sent by registered post which had remained un-replied. 3. The petitioners, who are mother and son after obtaining leave to contest claimed that the joint family of respondent owned about 34 shops and open land in the town including vacant shops left by Chhagan Lal Jaiswal and R. L. Gupta tenants. There has been no family partition. Story of partition is invented to entitle the respondent to seek the summary procedure for eviction under Chapter-III-A of the Act. Requirement of son of the respondent is denied. She has other shops also in her possession to satisfy her need. 4. The R.C.A. held that respondent had got the disputed shop in her share in the family partition. Relationship of landlord and tenant between the parties had been well proved. Respondent had been able to prove her bona fide requirement. 5. Both Suman (AW-1) and her son Vinay Akolkar (AW-2) had claimed that the respondent was allotted two shops in their share in family partition. Photocopy of memorandum of partition executed on 28-1-1995 orally effected in year 1981 was there on record. However, the same remained un-exhibited. The Senior Advocate for petitioners has argued that even if registration of the memorandum of partition was not necessary, such memorandum being executed after enactment of Madhya Pradesh Act, 8 of 1975 amending the definition of instrument of partition as defined under section 2(xv) of the Indian Stamp Act, 1899 and including a memorandum of partition also within such definition it would be properly stamped. Provision reads as follows : Section 2-15(iii) "when any partition is effected without executing any such instrument, any instrument or instruments, signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners;" 6. As per Senior Advocate for petitioners under Article 45 of Schedule I-A of the Indian Stamp Act, 1899 such instruments should bear the stamp duty as a bond, (as provided under article 15 of the same Chapter). According to Senior Advocate for petitioners such instrument of partition was inadmissible in evidence to prove partition. It was further argued that as such an instrument was suppressed by the respondent no secondary evidence could be given by the respondent. However, the R.C.A. could have impounded the instrument of partition not duly stamped only when it was sought to be proved or produced in evidence by the respondent. In the present case, the respondent had neither produced the original nor had sought to prove the same, to invite the operation of section 33 or 35 of the Indian Stamp Act. 7. Thus, the argument does not had any where. The fact remains that the respondent had sought to prove the family partition by oral evidence alone. 8. Certainly, oral evidence of partition orally effected could always be given section 91 of the Evidence Act does not create a bar to the proof of oral partition of which no instrument was executed at that time. Memorandum of partition prepared after several years of such partition was only one of the proofs of such partition. Otherwise also R.C.A. is not a full fledged Civil Court. It is a quasi-judicial authority. Provisions of Evidence Act do not apply to it with all formalities, only Principles of natural justice applied to such authority. Otherwise also as per Sheela vs. Firm Prahlad Rai Prem Prakash, AIR 2002 SC 1264 , though landlord has to prove that he was owner also in case he seeks eviction of the tenant on the ground of bona fide requirement, yet, the burden of proving ownership in a suit between landlord and tenant where the landlord-tenant relationship is either admitted or proved is not so heavy as in a title suit and lesser quantum of proof may suffice than what would be needed in a suit based on title. Even an admission by the tenant of the ownership of the landlord may be sufficient. Dilbagrai Punjabi vs. Sharad Chandra, (1988) Supp SCC 710. 9. In the present case both Suman (AW-1) and her son Vinay Akolkar (AW-2) had claimed that the respondents had got the disputed shops allotted to her share in family partition. The disputed shop was let out by Father-in-law of respondent Sadashiv Akolkar to Yashoda Bai (A-1). Both the witnesses do admit that no rent was ever paid by the petitioner to the respondent. Suman (AW-1) had admitted that she had a rent note in her possession which she had not produced. It is noteworthy that the respondent had never given a notice to the petitioners informing them that she had got the disputed shop in family partition and hence forth the rent be paid to her. Sanjay (NAW-1 A-2) and Haakim (NAW-2) did not admit that either any rent note was executed or any rent was ever paid to the respondent by the petitioners. It is noteworthy that the rent is being deposited in Income Tax Department in the name of M/s Akolkar Brothers, Mandsaur and not in the name of respondent. On this evidence, no relationship of landlord and tenant between the respondent and the petitioners had been proved. 10. It is well settled that even one of the co-landlords or co-owners can file a suit or application for eviction of the tenant. However, in that case such co-owners or co-landlords will have to prove that the co-owners or co-landlords had no alternative accommodation reasonably suitable to satisfy the need of one such co-owner. In other words the facts of this case, if the respondent is taken to be a co-landlord only, she has to satisfy that out of about 34 shops owned by Akolkar Brothers no reasonably suitable shop to satisfy the requirement of her son Vinay Akolkar (AW-2) had been there. Certainly, burden of proof of both the limbs of section 23-A of the Act lay on the respondent. Certainly, respondent had not undertaken to prove non-availability of alternative accommodation with any of the co-owners. 11. Thus, in the facts of the present case, neither the family partition was proved nor the fact that the respondent was the landlady. Certainly, burden of proof of both the limbs of section 23-A of the Act lay on the respondent. Certainly, respondent had not undertaken to prove non-availability of alternative accommodation with any of the co-owners. 11. Thus, in the facts of the present case, neither the family partition was proved nor the fact that the respondent was the landlady. It was also not proved that there had been no reasonably suitable shop within the town of Mandsaur to satisfy the need of Vinay Akolkar (AW-2), the son of respondent. 12. Thus, clearly the revision had force in it. The order of R.C.A. had not been sustainable. Thus, civil revision is allowed with costs. Application of the respondent stands dismissed.